20121022 TZHC Dodoma 1

IN THE HIGH cou·RT OF TANZANIA AT DODOMA APPELLATE JURIDSDICTION (DC)CRIMINAL APPEAL NO. 113 OF 2011 {Original Criminal Case No. 87 of 2011 of the District Court of Kondoa Distric{at Kondoa) . . .. MFAUME DAUDI MPOTO .................. ;: ...... ~: ................... APPELLANT ' ... VERSUS (Original Accused) ' THE REPUBLIC •.•••••••••••••••••••••••••••• !!• ••••••••••••••••••••••••• RESPONDENT , I (Original Prosecutor) JUDGEMENT '. ' 10/10/2012 & 22/10/2012 KWARIKO,J Originally, the appellant herein MFAUME 5/0 DAUDI @ MPOTO had been arraigned bef9re the District Court of Kondoa with the offence of Rape c/ s 130 (1) and 131 of the Penal Code Cap. 16 Vol.1 of the Laws R.E~2002.Thi particulars of the offence reveal that the appellant had on _the 13th day of May,2011 at about 15.00hours at. King'ang'a ·Prison Area· within Kindoa District in Dodoma Region unlawfully have carnal knowledge of one MARIA D/O DIDAS a girly of ten (10) years. The appellant had denied the charge and the prosecution brought a total of five (5) witnesses to prove the · same. The facts of the case as revealed during the trial from the prosecution show that one MARIA D/O DIDAS,PW1 aged ten(10) years.and MWAJABU D/O AMINA RAMADHANI,PW2 aged twelve (12) years had. been schooling in standard one at King'ang'a Primary School in Kondoa . These two came from School during the material day and time and met a person who wayiaid PW1 and raped her. After this act PWl reported the incident to her parents including 1 ' ~ . . . _.., J- • t 1 '! - father DIDAS S/0 ANTONY, PWl and was sent· to the King'ang'a prison where she identified the appellant herein who was a prisoner as her rapist. That the appellant had been identified since he was familiar to PWl and PW2 as he always grazed prison's cattle and the two used to see him on their way to and from school. PWl had been· sent to the prison Hospital where one NASIBU S/0 JUMA OMARY PW4, a medical personnel inspected· her 'and found his vagina with bruises and .blood stains. PW4 referred this girl to Kondoa District Hospital. A PF3 had been admitted as Exhibit PE 1. · ' Meanwhile ~he appellant was sent to Kondoa Police station where upon interrogation by a Police Officer No. D 7347 D/Cpl KICHONGE he admitted the allegations and his caution statement had been written. The caution statement was admitted in court as Exhibit PE 2. At the end of the prosecution evidence·, and after the accused had been addressed in terms of section 231 of the Criminal Procedure Act, Cap 20 R.E 20.02, he op_t~d to remain silent. The trial court set the case for,JJ:tQ,grnent where it was fouo,o _.that the prosecution case was proved beyond reasonable doubt against the appellant. He was found guilty and accordingly convicted. The appellant was sentenced· to thirty (30) years imprisonment. • Having been aggrieved by the trial court's decision the appellant filed this appeal where he raised about six (6) grounds of appeal which raise five important points of complaints. These are; First; that the tri.al court erred in law and in fact when it failed to conduct proper voir dire exarrffnation in respect of PWl and PW2, girls of tender age as required under Section 127 (1)& (2) of the Evidence Act Cap. 6 R.E. 2002. Second; that the trial court erred in law and in fact to ground conviction on insufficient prosecution evidence in respect of his identification. Third; that he (the appellant) could not have had an opportunity to commit rape while as a prisoner was under prison officer's guard. Four; that, his confession did not comply with the provision of section 53 ( c) (i) of the Criminal Procedure Act Cap.20 R.E 2002. And Five; that the trial court erred in law and fact when relied on the evidence of PW4 who did not prove that he was an authorized Medical Doctor. ' · · 2 L I- In. his additional ground of appeal the appellant complained that he was denie~ opportunity by the trial court to make his defence before the judgment was given. · When the appeal was called for hearing the appellant submitted on his grounds of appeal where he managed to explain that since he was a prisoner he could not have had opportunity to commit this offence as he was grazing' cattle under the guard of prison officers. He aI$0 contended that he did not defend himself during the trial. in response to the appellant's grounds of appeal and his submission in court Ms. Magesa I.earned State Attorney appeared on behalf of the respondent, Republic and opposed this appeal. Ms.Magesa submitted in relation of the first ground of appeal that the trial court's record is clear that v0.ir dire examination in respect of PW1 and PW2 had been done before their evider1ce was taken. In the. ~~~gn_d ground of appeal in relation to identification of the appellant at the scene Ms. Magesa contended that since the victim and he.r::frJ~nd knew that appellant before there was no need of an identification parade. A case of HASSAN KANENYERA V R (1992) T.L.R 100 had been cited to support this contention. And that the appellant's identification was not doubtful since the incident occurred in broad daylight. . • . Thirdly/ in relation to the complaint that the appellant could not have committed the offence while under prison guard him being a prisoner, Ms. Magesa countered as follows: That since the appellant's prison term was near the end and the prison authority had trusted him to work outside prison without being guarded, thus,in that respect the appellant got opportunity to commit rape. According to Ms. Magesa rape had been proved since PW1 explained how penetration had taken place which is essential ingredient to prove rape. In respect of the appellant's complaint regarding his caution statement Ms. Magesa learned State Attorney submitted that, this complaint is an afterthought, since the appellant voluntarily admitted the rape allegations. Further, that the appellant did not object his caution statement when it was tendered in court 3 j hence had no any complaint to that respect. ·However, Ms. Magesa charged; the appellant's confession was not the one singularly used to convict him as there was enough evidence from PWl, PW2, PW3 and P\f'.-'4 to prove the offence .. The appellanfs. complaint in relation to the evidence of PW4 had. been countered by Ms. Magesa that this witness was a recognized Medical Doctor and there had not been any evidence to the co'ntrary. In relation to the appellant's compli3int that he was denied opportunity to give his defence Ms. Magesa submitted that the appellant opted to remain silent after he had been addressed in terms of section 231 of the Criminal Procedure Act. That since the appellant's option to remain silent was· lega.l in terms of that law; the trial court did not err. To wind up her submission Ms. Magesa learned State Attorney contended . , .~,, ,... that the trial court erred to sentence the appellant to thirty (30) years ..a,-o:.4-.!,.~,.'J;,.,_,_... _ -- .,. , .... zJmprisooment ~ince th,~.Jt,i~ti,rn of rape' was agedt~n (10) years. That, this was contrary to the law unde'r''Section 131(3)of tfie:i'panel Cc;>.de<vvnich prev~d~:a · sentence of life imprisonment in case of conviction of rape where a victim is under the age of ten (10) years. Having cbnsidered the parties contending submissions the issue that pose to be decided f>y this court is whether this appeal has merits. ~ . Firstly, to answer the complaint the appellant raised in respect of voir dire examination in respect of PW1 and PW2 before they gave.,,their evidence and whether Section 127(1) &(2) of the Evidence Act had been complied, I would rather reproduce this law to grasp its import. It provides; ''S.127-(1) Every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age/ extreme old age/ disease {whether of bodily or mind) or any other similar cause. 4 i.. (2) Where in any crimln?JI cause or matter a- child of tender age called as a witness does notin tf]e opinion of the court .understand the nature of an oath, his evidence may be received though not given upon oath or affirmation, if in the opinion of the court, which . opinion shall be recorded in the proceedings, he is possessed of sufficient intelligence to Justify the reception of this evidence, and understan_ds the duty of speaking- the truth// - Of the two subsections quoted above-. the second one is -of interest as far as the appellant's complaint is concerned.· The two girls, PWl and PWZ have been recorded to be aged ten (10) and twelve (12) years respectively hence of tender age thus subject to the provisions of subsection (2) above. ,.,,The law requires that before receiving evidence of a child of tenct,er age the court should examine him/her to find out if he/she understands the nature of an oath and the duty of speaking the truth. That, the appell_ant says the trial court did not comply. · '· · The record of the trial court shows that the Magistrate examined that two girl~--·and. findings recorded pefore their evi.9~Qce was received. But the court diff .'onl~fopine tha't the tw6'\ivere compete'nf'i6 givEf'~Vfdente·>'';fi-~!iit:fi'd'\not go , :.-,.,_, ,_,_--·-•·' •·' ,'· further to show if the girls understood the nature of an oath and duty of speaking the truth. In fact the two girls gave an unsworn testimony and no reason had been given to that effect. To receive an unsworn testimony the court ought to have opined that the girls did not understand.the nature of an oath. This iS" in conformity with the cited law under subsection (2). In each case the trial court opined that •the girls were competent to testify. No questions wf!re asked and answers suppiied by the girls. What is in record- shows that; From PWl it was recorded as thus; • "PW1. -I'm Maria Didas - I'm aged ten years old - I'm standard one at King'ang'a primary school - My head teacher is Mr.MohamedRajabu . - My class teacher is Mrs. Christina Francis. Court: The PW1 she is competent to testify evidence. // Then for PW2 the following was recorded: 5 ''PW2 Mwajabu Amina Ramad!Jani Court: Since she is tender age, let voir dire test be conducted - I'm studying standard one at King'ang'a Primary School. - My father is MR.Ramadhani - My head teacher is MohamediRajabu - I'm twelve years old - I know Kiswahili. N As I indicated earlier this is not what the cited law envisaged. For the foregging this court disagrees with Ms. Magesa learned State Attorney that voir dfre examination had been properly conducted in conformity with the cited law. It follows therefore that PW1 and PW2's evidence was received contrary to the mandatory provision of the law and the same ought not to have been acted upon. It is accordingly discarded. (Also see the case of EMMANUEL S/0 MIGESHI@BADATU VR, Criminal Appeal No.454 of 2007, Court of Appeal- of Tanzan_ia at Tabora (Unreported). The 1st ground of complaint thus succeeds. As for the second ground of complaint, this court: agrees with the appellant that the evidence in relation to his identification ·at the scene was not sufficient. Having discarded PW1 and PW2 evidence the only evidence that remains as far as identification of the appellant is concerned it that of PW1's father, F?W3. PW3 said the girl identified the appellant in a line - up at the prison premises. He said he was also there. The question to be asked here is how Vhe girl had become familiar with a prisoner that could have helped her to identify him? This question had not been answered because no evidence was tendered to show the scene of crime to establish the proximity between the girls' residences, school, a way through and prison's grazing ground. No any investigation has been carried out to that effect. No evidence was tendered to show that only the appellant was assignecl duty of grazing cattle outside prison. PW3 did not say the girl knew the appellant before'. In fact the alleged identification parade was a mere sham. Prison Officers are not legally mandated to conduct identification parades. This duty is the domain of Police Officers who investigate crimes. And the rules 0 pertaining identification parade are well provided in the Police General 6 l . . . Order No.232 which have been echoed in the celebrated East African Court of Appeal case of MWANGO S/0 MANAA VR (1936) 3 EACA 29 as follows; ''INSTRUCTION FOR IDENTIFICATION PARADE . 1. That the accused person is always informed that he may have a solicitor or friend present when the parade takes place. 2. That the officer in charge of the case although may be present does not carry out the identification. 3. That the witnesses do not see the accused before the parade. 4. That the accused is placed among at least eight persons, 1s far as possible of similar age, height, general appearance and class of life as himself or herself. 5. That the accused is allowed to take any position he chooses, and that he is allowed to change position after each identifying witness has left, if he- so desires. 6. Care to be exercised that the witnesses are not allowed to communicate with each other after they have·. been to the parade. " 7. E)fc/ude every person who has no business there. , ,. 8. Make a careful note after each witness ietives · the parade, recording whether the witness identifies or other circumstance. 9. If the witness desires to see the accused walk, hear him speak, see him with hat on or off, see that this is done. As a precautionary measure it is suggested the whole parade be asked to do this. 10. See the witness touches the person he identifi~s. 11. At the termination of the parade or during theparade asks the accused if he is satisfied that the parade is being conducted in a fair manner and make a note of his reply. 7 (I 12. In introducing the witness te/j him that he will see a group of people who may or may not contain the suspected person. Don't say ''pick out somebody" or influence him in any way whatever. 13. Act with scrupulous fairnes~ otherwise the value of the identifi~ation as evidence· will depreciate considerable" Thus, the.. purported identification parade had not been th~ one envisaged by law. The police, after the appellant had been sent to them and considering the age of the victim ought to have conducted a legally recognized identification parade. They did not do so. Thus, the appellant's identification had not been proved. This ground of complaint is thus uphe!,d. ,,, The third complaint is closely related to the foregone complaint. The appellant says he could not have committed the. offence as a prisoner under custody. I agree~ with the appellant in the sense that no· any prison officer came to testify to prove if the appellant was assigned duties outside prison premises. No one came to testify that even if the appellant was working out but he was not under prison officers' custody/guard. Sine~, even if he was working out but"on guard, He could not have got opportunity to commit such offence. I do not agree with Ms. Magesa that since the appE?!lant was nearing end of his jail term he had been trusted and let free to work out unguarded. This is pure speculation as no any prison officer came to testify to that effect. The only prison officer who came to testify is PW4 who he said worked in the dispensary. PW4 did not explain the prisoners' routine and did not say he was responsible vtiith · prisoners' activities. He only said was treating officers, prisoners and civilians. He also said the appellar,t was a prisoner and was still servrng his sentence. Thus, this ground of complaint succeeds. In the fourth ground of complaint the appellant said h(s confession was not taken in accordance with the law. This court agrees. ;With the learned State Attorney that the appellant did not'object his caution statement when was introduced in _evidence. However, the court finds that despite non- objection the court was legally duty bound to analyze this statement and more so since the appellant was unrepresented. 8 t. It is my considered opinion that the accused's confession and resultant caution statement did not comply with the mrandatory provision of the law. If . the appellant's confession was recorded in terms of Section 58 of the Criminal Procedure Aq; (supra) as it is the case, the caution statement ought to have been written by the appellant's own · land after he had been provided with writing materials. However, the appellant's caution statement is a narrative where it appears the appellant gave- his story. And there is no any evidence which "'.Vas tendered to show that he wrote the same by his own hand. Therefore, the appellant's caution statement contravened the cited law and thus illegal. _ Not only the foregoing, but the appellant was interrogated about six days later after he_ had been taken into restraint. The appellant was arrested on 13/5/20011 but the caution statement shows that he was interrogated on 19/5/2002. This was contrary to the law where only four(4) hours are provided within which a suspect should be interrogated after being taken into restraint (see section 50 (1) (a) of the Criminal Procedure Act) (~upra). Also this period can be extended ·upon applicatjon by the police officer concerned as it is provided under section 51 of the Criminal Procedure Act (supra). No reason was advanced as to why there was such delay to interrogate the appellant and if that period ·had been extended according to the law, there was no evidence to such effect. These provisions of the law have been enacted in order to safeguard the rights of accused persons and contravention of the same have only one answer, the violation of accused's rights. "\ • ~ ::,. For the foregoing therefore, the appellant's caution statement which had been obtained contrary to the mandatory provis~ons of the)aw could not be acted upon and it is declared illegal and rejected from the evidence. The following complaint by the appellant is that PW4 who said was medical personnel did not prove that assertion. Ms. Magesa contended that PW4 was a Medical Doctor. Actually, I found it difficu!t to understand if PW4 was a medical doctor or otherwise. Firstly, he said in his evidence that he was a prison security officer at King'ang'a prison and later said he was treating officers, prisoners and citizens. In fact PW4 did not explain himself if he was a qualified medical doctor to have known what he found in the girl's vagina upon examination. What is surprising more is that PW4 ~id not write any 9 - report of his finding upon examination of PW1. He ought \o have written an . initial report of his findings before he referred the glrl to the District Hospital. This was important step in proving the offence of rape. Thus PW4 did not a prove that he was medical doctor fully qualified. Now to prove rape there is only the evidence of PWl's father,PW3 who said upon inspection he found blood and sperms in the girl's vagina. This finding ought to have been supported by victim's evidence which unfortunately has been discarded. Else, the evidence ought to have been supporte9 by medical evidence. There is the complainant's PF3, Exhibit PE1 which indicated that attempted rape had been detected on the victim. However, the· victim's PF3 could not be of any assistance since ft was received in court in clear contravention of the mandatory provision of the law. The medical doctor who filled the PF3 was not called to testify and actually the trial court did not inform the appellant of his right to have the medical doctor who filled the PF3 be called to testify. This is in accordance with section 240 (3) of the Criminal Procedure Act (supra). Thus, the PF3, Exhibit EP1 had been illegally admitted and it is hereby discarded from the evidence. Having analyzed the evidence in relation to proof of rape the court has found that the same had not. 9een sufficient to prove rape as required under section 130 (3) of the P~rial Code i.e there must be proof of penetration of a male organ into a victim's vagina or private part. ; And lastly, in relation to the appellant's additional ground of appeal that he was not afforded opportunity to give his defence, the court is in agreement with that assertion. This is because the record did not prove that the appellant opted to remain silent. This is so because after the prosecution had closed its case the court addressed the appellant in terms of section 231 of the Criminal Procedure Act (supra). The appellant's. reply had been recorded in the following term; · ''I will remain silent, I'm not ready, hence I pray for date of final Judgment" 10 Then the cciurt _recorded; "Court: I have warned the accused several times to defend himself but he pray {sic} to remain silent pending date ofJudgment, hence let the matter be adjoined for ·finalJudgment'~ · In my considered opinion the appellant's option was ambiguous and confu?.i(1g._ Thus, the trial court ought not to have hurriedly ruled out that the appellant had opted to remain silent. This is so because there was a mixture of not being read/and prayer for final judgment. As the appellant was not represented, the trial court should have given him time to digest what had been addressed to him as options to his defence. The court may have adjourned the trial to a future date to afford the appellant opportunity to prepare and- decide. Thus, the appellant was not given opportunity to give his defence and thus he was adjudged unheard which was a violation of one of the principles. of natural justice. This omission vitiated the whole proceedings. Had there been strong evidence against the appellant this court could have ordered a re-trial. As indicated herein above, there is no such: evidence. Be it as it may, the prosecution case against the appellant was not proved to the~ ·standard required in law, that is, proof beyond reasonable doubt. Thus :the appeal is allowed, conviction quashed and sentence set -- aside. , The appellant is ordered to be set at liberty unless he is otherwise lawfully held. It is ordered accordingly. -------·-·· ~-··,.' "------;---L ;- -.. ·- --.. ---- (M.A ..' ~ . · ARIKO) . JUDGE 11 22/10/2012 COURT; Right of Appeal fully explained. ~iJl;jRiK~) JUDGE 22/10/2012 DELIVERED AT DODOMA 22/10/2012 Appellant: Present FQr Respo~dent: Ms .. Magesa State Attorney C/C:MsKomba 12